A — · Gerrit Holdijk and others (141/81, 142/81, 143/81)

A —The defendant in the main proceedings in Case 143/81, Veevoederbednjf “Alpuro” BV (hereinafter referred to as “Alpuro”) points out that in the Netherlands 83 % of calves for slaughter are kept in enclosures which are between 55 and 64 cm wide and that the calves are usually sold as soon as they attain a weight of about 200 kg.It states that 90 % of Netherlands veal production is exported, that practically the whole of such exports are to other Member States and that the Netherlands is far from being the biggest veal exporter in the Community. Consequently, the position of veal in the Netherlands meat sector might possibly be seriously threatened by the existence of conditions of production which distorted competition in the Community. Moreover, the major part of Community production of skimmed-milk powder is used for the fattening of calves. It would be impossible to find other outlets for that product, of which there is a considerable surplus in the Community, otherwise than by means of much larger subsidies than those granted in respect of milk powder used for the feeding of calves. A decrease in the fattening of calves would moreover bring great pressure to bear on the prices of very young calves.Alpuro adds that these cases are the first in which the Public Prosecutor's Office has applied the Mestkalverenbesluit. In consequence of the application of that decree, fatting calves must be accommodated in enclosures at least one metre wide so that they can lie down unhindered on each side. The use of the existing cattle-sheds in the Netherlands would therefore no longer be permitted for the production of veal, which would result in a transfer of veal production to other countries in the Community.In that regard, Alpuro drew attention to the fact that fatting calves fall within the scope of Regulation No (EEC) 805/68 of the Council, of 27 June 1968, on the common organization of the market in beef and veal (Official Journal, English Special Edition 1968, p. 187) and that national measures which might alter the pattern of imports or exports or influence the formation of market prices are incompatible with such an organization (judgment of 29 November 1978 in Case 83/78 Pigs Marketing Board [1978] ECR 2347). Within the framework of such organizations, the Member States are not permitted to adopt additional measures which are such as to jeopardize the equality of treatment of traders throughout the Community and thus to distort the conditions of competition between the Member States — judgment of 7 February 1979 (Joined Cases 15 and 16/76 France v Commission [1979] ECR 321, paragraph 31 of the decision).It refers also to Article 40 (3) of the Treaty which provides that the market organizations are to exclude any discrimination between producers or consumers within the Community.The Court has held on several occasions that national restrictions on production affect — or at any rate are capable of affecting — trade within the Community and must therefore be regarded as measures having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty (judgment of 30 October 1974 in Case 190/73 Van Haaster [1974] ECR 1123; judgment of 18 May 1977 in Case 111/76 Van den Hazel [ 1977] ECR 901).The application of the disputed Netherlands provisions would affect such trade since it would entail a fall in production by reason of the fact that the number of calves permitted to be kept in each production unit would be lower, the cost price of fatting calves would increase and the fatting-calf trade would move to countries which apply less strict rules.Similarly, according to Alpuro, the measures at issue cannot be justified by virtue of Article 36 of the Treaty, which refers only to the health of animals and not to their wellbeing.Alpuro adds that in its judgment of 2 July 1974 in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 19 of the decision, the Court admitted that changes in production costs brought about by unilateral national measures necessarily affect trade between the Member States. The Court further recognized, in its judgment of 6 June 1978 in Case 147/77 Commission v Italy [1978] ECR 1337, paragraph 2 of the decision, that disparities in national provisions governing the protection of animals are of such a nature as to affect directly the functioning of the common market since the costs arising from such requirements are variable from one Member State to another.The Community institutions are also aware of the need to adopt, with regard to production conditions in intensive farming, Community measures for the protection of animals, as indicated by the Council Resolution of 22 July 1980 (Official Journal 1980 C 196, p. 1) inviting the Commission to submit proposals regarding the keeping of layer hens in cages, the Commission's replies to written questions Nos 104/80 (Official Journal C 201 of 6 August 1980, p. 1), 1333/80 (Official Journal C 56 of 16 March 1981, p. 14) and 2232/80 (Official Journal C 134 of 4 June 1981, p. 36), in which the Commission announced that a research programme was being initiated regarding other animal species as well, and the Proposal for a Directive which the Commission submitted to the Council on 5 August 1981 laying down minimum standards for the protection of laying hens kept in battery cages (Official Journal C 208 of 18 August 1981, p. 5).For those reasons Alpuro considers that protection for animals in intensive farming must be provided by Community provisions applicable to all producers in the Community, ensuring that conditions of competition are not distorted.Accordingly, Alpuro proposes that the question submitted should be answered as follows:“Article 30 of the Treaty (...) and Regulation (...) No 805/68 exclude all unilateral national provisions laying down rules regarding the minimum dimensions for enclosures intended for the keeping of fatting calves, in so far as such rules differ from those which are permissible and usual in the other Member States.”